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Entries in OSHA
(12)

The first year of the Trump administration has brought significant changes – many of which directly affect employers. On Thursday, January 25, Verrill Dana will host a full-day Annual Employment Law Update at The Westin Harborview Hotel to explore these changes and how to address them.

I am just back from an invigorating seminar put on by the national group to which we belong as the sole Maine member, the National Workers’ Compensation Defense Network and want to share some highlights. This year’s seminar, held in Chicago on September 22, included presentations on lots of relevant topics, but a few really inspired me.

The seminar kicked off with a panel including risk managers from retail, healthcare, trucking and manufacturing discussing various innovative ways to “Make our Work Comp Program Great Again!” The panel discussed claims costs management tactics including creative medical management systems, initiating early investigations and setting workable and real metrics to measure progress in claims management. Next, we learned all about traumatic brain injuries, including the medical science behind legitimate claims and signs of illegitimate claims. A session on reducing narcotic use featuring a risk representative from a large national retail chain was also very well-received and timely. But one of the most informative session, in my humble opinion, was presented as an “ad-on” by my colleague from Washington State, attorney George Goodman and it is this session that I’d like to bring to our reader’s attention.

Just in case you missed our earlier post, effective August 1, the Department of Labor issued a new rule implementing significantly higher penalties upon employers for Occupational Safety and Health Act violations. After August 1, the new penalty rates will be effective for any violations which occurred after November 2, 2015.

By way of example, a willful or repeated violation citation jumps from a $70,000 maximum fine to $124,709. The odd numbers come from the fact that the changes are implemented pursuant to the Inflation Adjustment Act of 2015, which required the DOL and other federal agencies to increase their penalties based on inflation since the penalties were last upped. Subsequently, the Inflation Adjustment Act requires annual adjustments for inflation based on the consumer price index. But, it is not just OSHA violations that will be costlier, it is all across the board, from FMLA to violations of minimum wage and overtime rules. So, be sure to check that all of your posters are current, as there are fines for inadequate postings for such laws as Title VII, FMLA, Wage & Hour, Workers’ Compensation, etc.

There are things we all need to know about Zika: 1) it is spread mostly by an infected Aedes species mosquito; 2) it can be passed from a pregnant woman to her fetus; 3) there is no vaccine or medicine for Zika; and 4) confirmed cases of the Zika virus have been identified in the United States. While there are a whole host of things we still need to learn about the virus, there are a number of things you as an employer need to be mindful of when it comes to this virus

Late last week, while everyone was focused on the summer holiday, the Department of Labor announced that pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvement Act, OSHA’s maximum penalties, which have not been raised since 1990, will increase by 78 percent. This will increase the “serious”, “other-than-serious” and “posting requirements” penalty from $7,000 to $12,471 per violation, the failure to abate from $7,000 per day beyond abatement date to $12,471 per day beyond abatement date, and increase the maximum penalty for willful or repeated violations from $70,000 to $124,709.

Oftentimes clients ask, “When we think an employee is high, can we fire him?” My answer is consistently the same, “That depends.” It depends on a whole host of factors, what state do you live in, what industry do you work in, why do you think he’s high, but most importantly, what is your risk tolerance?

In at-will states (of which many are), an employer can terminate an employee for any reason as long as it is not in violation of a law. The problem is, the list of laws which protect employees continues to become longer and longer. Employee protections related to the use of controlled substances is no exception. We see the ADA, state marijuana laws, OSHA, state drug testing laws, and other fair employment practices laws consistently affecting the marijuana in the workplace analysis.